Tuesday, August 4, 2020

Federal court in New York invalidates parts of FFCRA final rule

Yesterday, S.D.N.Y. issued an opinion in New York v. U.S. Dept. of Labor,* invalidating potions of DOL's FFCRA final rule. Now, don't freak out just yet, this is just one district court's opinion - but, it is important to see this take. The Court invalidated four provisions:

Work Availability Requirement 
DOL's final rule requires emergency paid sick leave (or emergency FMLA) only if the employer has work available for the employee. The FFCRA statute requires such leave "due to" one of the reasons listed (see the 6 reasons here) with no express work availability requirement. 

The Court rejected DOL's justification for the work availability requirement both because it only applied to some of the qualifying events (with no explanation as to why it didn't apply to all), and because it found DOL's justification to not be sufficiently "reasoned." Although DOL's justification was very brief, I frankly found it quite persuasive: "[T]he work-availability requirement is justified 'because the employee would be unable to work even if he or she' did not have a qualifying condition." But, nobody asked me to decide this case. 

Definition of "Health Care Provider"
Employers may exclude "health care provider[s]" from the FFCRA leave requirements. The Court held that DOL's definition of a "health care provider" was too broad, noting that it would encompass, "an English professor, librarian, or cafeteria manager at a university with a medical school." The Court emphasized that the definition must at least include some minimal "role-specific determination" (i.e. was the employee actually serving some health care function?).

Intermittent Leave
A mixed ruling on this issue - The Court held that DOL could allow employers to bar intermittent leave in cases "that implicate an employee's risk of viral transmission." But, employers cannot be afforded such discretion in other cases; for example, employees without child care, and presumably employees teleworking, because they are not a risk of transmission.

Documentation Requirements
Finally, the Court held that the documentation requirements cannot be a precondition to leave because of the unforeseen nature of the qualifying events. The statute, however, does require "such notice of leave as is practicable" under the EFMLA provisions. And, "after the first workday" an employee receives EPSL, the employer may require the employee to follow "reasonable notice procedures."

If you're not in the Sourthern District of New York, then this ruling does not directly apply to you - but, it might be a sign of things to come in your jurisdiction. If so, then employers face some issues:
  • Employees who satisfy a qualifying event may be entitled to FFCRA leave even if they have been temporarily furloughed;
  • Employers may only be able to exclude "health care providers" who actually perform a health care role;
  • Employers may be required to provide intermittent leave to employees who do not pose a risk of transmission (e.g. employees working from home, or staying home to care for children due to lack of childcare); and
  • Employers may not require documentation as a precondition for leave. 
I wouldn't go re-writing everything just yet - but these are important issues to keep an eye on. 

*HT to Eric Meyer, of The Employer Handbook fame, for posting the opinion. 

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